Allowed

Sri Damodar Raju B K v. Smt Saritha

Karnataka HC6 Jun 2023MFA/7506/2016

Case brief

AI extract

What is this about?

Appeals against a family court's order that dismissed the husband's divorce petition and allowed the wife's restitution petition. The High Court set aside the order, granted divorce on the ground of cruelty, and awarded the wife permanent alimony of Rs.45 lakhs.

What did the court decide?

Decree of divorce granted, wife's restitution petition dismissed, permanent alimony of Rs.45 lakhs awarded to wife.

Sri Damodar Raju B K Vs Smt Saritha — Matrimonial and Divorce | Karnataka HC (2023)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 6^th DAY OF JUNE, 2023

¶4

PRESENT

¶5

THE HON’BLE MR. JUSTICE ALOK ARADHE

¶6

AND

¶7

THE HON’BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶8

MFA NO. 7506 OF 2016 (FC) C/W MFA NO.7507 OF 2016 (FC)

¶9

IN MFA NO.7506/2016:

¶10

BETWEEN:

¶11

SRI DAMODAR RAJU B. K, S/O LATE B. K. KANNAIAH RAJU, AGED ABOUT 42 YEARS, R/AT NO.E-31, E-BLOCK, DIAMOND DISTRICT, AIRPORT ROAD, BANGLAORE-560 008. ... APPELLANT

¶12

(BY SRI RAAM PRASAD B.S., ADVOCATE)

¶13

AND:

¶14

SMT SARITHA, W/O DAMODAR RAJU B. K., AGED ABOUT 33 YEARS, R/AT NO.45, CHOLNAYAKANAHALLI, KEMPAYYA LAYOUT,

¶15

¶16

R. T. NAGAR POST, BANGALORE-560 032. ... RESPONDENT

¶17

(BY SMT.R.THEAN MOLI, ADVOCATE)

¶18

THIS MFA IS FILED U/S 19(1) OF FAMILY COURTS ACT, 1984 R/W SEC 28 OF THE HINDU MARRIAGE ACT AGAINST THE JUDGMENT AND DECREE DATED 23.8.2016 PASSED IN MVC NO.2747/2007 ON THE FILE OF THE 5^TH ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FILED UNDER SEC 13(1)(ia)(iii) (a) & (b) OF HINDU MARRIAGE ACT.

¶19

IN MFA NO.7507/2016:

¶20

BETWEEN:

¶21

SRI DAMODAR RAJU B. K., S/O LATE B. K. KANNAIAH RAJU, AGED ABOUT 42 YEARS R/AT NO.E-31, E-BLOCK DIAMOND DISTRICT, AIRPORT ROAD, BANGLAORE-560 008. ... APPELLANT

¶22

(BY SRI RAAM PRASAD B.S., ADVOCATE)

¶23

AND:

¶24

SMT. SARITHA, W/O DAMODAR RAJU B. K., AGED ABOUT 33 YEARS, R/AT NO.45, CHOLNAYAKANAHALLI, KEMPAYYA LAYOUT, R T NAGAR POST, BANGALORE-560 032. ...RESPONDENT

¶25

¶26

(BY SMT.R THEAN MOLI, ADVOCATE)

¶27

THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT, R/W SEC.28 OF THE HINDU MARRIAGE ACT, AGAINST THE JUDGMENT AND DECREE DATED 23.08.2016 PASSED IN M.C.NO.3231/2013 ON THE FILE OF THE V ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 9 OF THE HINDU MARRIAGE ACT.

¶28

THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.05.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

¶29

O R D E R

¶30

These two appeals under Section 19(1) of the Family Courts Act, 1984 arise from the judgment and decree dated 23.8.2016 in M.C. No.2747/2007 clubbed with M.C. No.3231/2013 on the file of V Additional Family Court at Bengaluru. In terms of the impugned judgment and decree the Family Court has dismissed the husband's petition in M.C.No.2747/2007 seeking dissolution of marriage and allowed M.C.No.3231/2013 filed by the wife seeking restitution of conjugal rights.

¶31

¶32

In terms of the impugned judgment and decree dated 23.8.2016, the suit in O.S.No.200/2009 filed by the wife seeking partition and separate possession was also decided by the Family Court and the suit is dismissed. The said judgment and decree dismissing the suit has attained finality.

¶33

The parties to the proceedings, hereinafter are referred to as husband and wife.

¶34

The other facts necessary for adjudication of the cases are summarized as under:

¶35

The petition in M.C.No.2747/2007 referred to above was filed by the husband seeking dissolution of marriage which was solemnised on 7.12.2005. The husband sought the dissolution on the ground of cruelty and mental disorder of the wife. Later, the application was filed seeking amendment of the petition seeking dissolution of the marriage on the ground of cruelty.

¶36

¶37

It is the case of the husband that the wife displayed weird behaviour and she used to live in her world. The wife started saying that she and her husband can never be happy and the mother of the husband keeps talking to herself. It is the further contention of the husband that he never went to bed in peace on account of the ill-treatment of the wife. The husband further states that he thought that the wife is unable to live comfortably in the company of his mother and other family members and as such, he thought of setting up a separate residential house for the benefit of his wife. Accordingly, he submits that a separate house was taken on rent in the first week of June 2007 and he shifted to a separate house. It is also his contention that the situation did not improve even after shifting to a new house. He had further alleged that the wife used to pick-up quarrels for no reason with the husband and one day she picked up a kitchen knife and tried to harm herself.

¶38

¶39

The husband has further alleged that on most

¶40

occasions, his wife used to be untidy, messy and badly dressed. On many occasions, she woke up late and was not having bath till late afternoon. It is also his contention that she used to run the fan at full speed throughout the night without bothering about the discomfort of her husband. It is also alleged that on most of the days when the husband returned home from work had to face frowning behaviour from the wife. It is also his contention that on his return from work, the wife used to demand a detailed explanation as to what the husband has done and he had to report on a minute-to-minute basis the whole day’s work. It is also his contention that the wife never bothered to keep the house clean and tidy and on most of the time the house used to be unkempt and dirty. It is further alleged that the respondent used to utter obscene language against the husband.

¶41

¶42

It is also his contention that on one occasion

¶43

the wife raised a quarrel, went to the kitchen, brought a knife and in the scuffle, the husband’s right hand, middle finger and thigh got severely wounded and he had to rush to the hospital to get the wounds stitched. It is further alleged by the husband that the wife did not allow him to meet his mother. Whenever she came to know that he has visited his mother the wife used to get violent and would create a scene.

¶44

It is further alleged by the husband that the

¶45

wife used to constantly threaten the husband that she would commit suicide and on many occasions, had gone to the matrimonial home without informing him about her whereabouts. It is also his case that on one occasion she had left the house without revealing where she had gone and hoping that she will be there in the maternal home, he went to her maternal home and she was not found there.

¶46

¶47

The wife returned to the home late in the day and even after her return did not disclose where she had gone.

¶48

It is the further contention of the husband that

¶49

the wife’s behaviour did not improve and the situation turned to worse. As suggested to him, he took his wife to a psychiatrist to get her counselled. It is also his contention that the psychiatrist after examining the wife prescribed certain medicines. The wife though started taking medicines, later, abruptly stopped taking the medicines saying that it is not required. She insisted on buying gemstones and the husband purchased several gemstones and rings. However, there was no improvement in her behaviour and she made an attempt to commit suicide by consuming alcohol and some tablets. It is alleged that she was admitted to Sri Shirdi Sai Hospital as an inpatient for a day. It is also the contention of the husband that even after the discharge wife did not continue with the medication and she used to abuse the husband in obscene

¶50

¶51

language and she had no control over her moods. She often used to lock herself up in the bedroom and did not allow the husband to enter the room. And she used to threaten the husband stating that she would commit suicide by tying dupatta around her neck.

¶52

According to the husband, the wife is suffering from a mental disorder and split personality syndrome and her mental condition is incurable. He would submit that on account of her behaviour he suffered mental as well as physical cruelty. The husband also alleged that since November 2007, the husband and wife never resided together and as such she has deserted the husband without any reasonable cause. Against the backdrop of the aforementioned allegations, the respondent sought dissolution of marriage on the ground of cruelty, desertion and mental disorder.

¶53

The wife opposed the petition and denied all allegations levelled against her. The wife contends that the

¶54

¶55

husband has filed a petition without there being any cause of action or any basis to seek dissolution of marriage. It is also her contention that the wife was treated cruelly by the husband and the husband has not made any arrangements for the well-being of the wife. It is also her contention that the husband has failed to maintain her and used to insist the wife to bring dowry, from her parents’ house. It is also her contention that the husband used to ill-treat her at the instance of his mother who treated the wife as a servant.

¶56

It is also her contention that the husband’s mother is not having a good reputation and this aspect is known to the relatives as well as the neighbours. It is her further allegation that her husband did not stand by her when the mother-in-law ill-treated her. It is also alleged that the husband used to consume alcohol and abuse her. It is also her contention that the husband used to torture the wife by saying that he wants property from her maternal home. It is also the contention that she has

¶57

¶58

allowed the husband to stay for two days in a week with his mother in his mother’s house and denied the allegation that she did not allow the husband to meet his mother.

¶59

It is also the contention of the wife that all the family members of her husband are suffering from a mental disorder and have split personality syndrome.

¶60

In her petition seeking restitution of conjugal rights, the wife has alleged that her parents have spent Rs.12 lakhs to perform her marriage. It is her case that after the marriage, the parties resided at Sanjay Nagar in Bangalore, where the mother and the brother of her husband resided. It is also contended that the husband’s brother has deserted his wife and the child and the matrimonial dispute in this regard is pending. It is further contended that 2 to 3 months after the marriage, her life became pathetic and miserable in the matrimonial home. It is alleged that the husband’s mother used to ask the wife to sleep in the hall and the husband used to sleep in

¶61

¶62

the bedroom alone. The mother-in-law never allowed the wife to visit her parent’s house or to have outings with her husband. It is also alleged that the husband started pressurising the wife to bring money from her parents. When the parents of the wife could not meet the demand of the husband, the wife pleaded with the husband to permit her to do some job. However, she was not allowed to do.

¶63

It is also the contention that in June 2007, the husband asked the wife to come to R.T. Nagar and stay in the house which the husband had taken on rent. It is her case that her parents had provided all the furniture, groceries and utensils for the newly rented house. It is also alleged that the husband has withdrawn from the matrimonial society of the wife for six months from June to November 2007. It is also the contention that whenever the husband came to the flat, he was in an inebriated condition and used to quarrel with the wife for no fault and

¶64

¶65

used to tell her not to depend on him and used to ask her to go to the parent’s house. It is also her contention that the husband was talking to a lady by name of Sandya and when she made enquiries about her, he made an attempt to commit suicide and the wife admitted him to Columbia Asia hospital.

¶66

It is also the case of the wife that the husband

¶67

has deserted the wife at the instigation of family members and it is also her case that she does need the company of the husband and accordingly, she has filed the petition seeking restitution of conjugal rights.

¶68

The husband has contested the petition seeking restitution of conjugal rights and denied the allegations made against him. It is also his case that he had filed a petition seeking dissolution of marriage in the year 2007. Since then the parties are living separately and the wife has stayed away from the company of the

¶69

¶70

husband, there is no cause of action for the wife to file the petition seeking restitution of conjugal rights.

¶71

During the course of the trial the husband has examined himself as P.W.1 and a doctor is examined as P.W.2. 38 documents are produced on behalf of the husband and marked as Exs.P1 to P38. The wife has examined herself as R.W.1 and two documents are marked on her behalf as Ex. R1 and R2. It is relevant to state that both cases are clubbed and common evidence is recorded.

¶72

The Family Court after considering the materials on record has concluded that the husband has not proved his case and accordingly dismissed the petition seeking dissolution of marriage. At the same time, the Family Court has also concluded that the wife made out a case for restitution of conjugal rights and accordingly her petition seeking the restitution of conjugal rights is allowed. The aforementioned judgement and decree passed by the Family Court are called in question by the husband.

¶73

¶74

The learned counsel appearing for the husband would submit that the husband has established his plea relating to cruelty. He contends that enough material is placed before the Court to show that the wife has treated the husband with cruelty. Unfortunately, the Family Court has not considered all these aspects from a proper perspective and has erroneously held that cruelty is not established. In support of his contention, the counsel for the husband would refer to the copies of the email messages sent by the wife where she has given a threat of suicide and made her intentions by saying that she has no intention to reside with the husband. Thus, it is urged, the fact that the wife is not interested in marriage and that she was threatening and was harassing him is established and as such the Family Court ought to have granted a decree for dissolution of marriage.

¶75

It is also his contention that the wife is suffering from mental disorder and it is not reasonable to

¶76

¶77

expect him to live with her and it is not possible for continuing the marital relationship. It is also his contention that since 2007, the parties are living separately and as such the plea of desertion is also established and the Family Court erred in dismissing the petition and granting the decree for the dissolution of conjugal rights.

¶78

The learned counsel for the wife contended that the grounds relating to cruelty are not pleaded. It is also her contention that the pleading of desertion is also not made out in the petition as the husband himself has pleaded that the husband and wife lived together till November 2007 and the petition is filed in 2007 itself. It is also her contention that the plea leading to mental disorder is also not established. The Doctor who is examined on behalf of the husband as P.W.2 has not turned-up before the Court for cross-examination and there is no evidence to substantiate the said plea. It is further contended that the Family Court has analysed all

¶79

¶80

the materials on record and has rightly dismissed the petition by following the ratio laid down in the case cited on behalf of the wife. It is further submitted that the petition seeking restitution of conjugal rights filed by the wife is rightly allowed by the Family Court by assigning valid reasons. It is also contended by the wife that the husband has withdrawn from the company of the wife without there being any reasonable cause. It is also her case that she is ready and willing to live with the husband and the judgement relating to restitution of conjugal rights must be upheld.

¶81

This Court has considered the contentions raised the bar and perused the impugned judgement and decree and the judgments cited at the bar.

¶82

There is no dispute over the fact that the marriage between the parties took place in the year 2007. It is also not in dispute that the husband and wife stayed together in the house where the mother and his brother.

¶83

¶84

Later the husband rented a house and stayed with the wife till November 2007 and thereafter the wife left the company of the husband without any reasonable cause and she never returned. It is also required to be noticed that the petition is filed in the year 2007 itself.

¶85

The provision of the Hindu marriage Act relating to desertion is very clear. Under section 13(1)(ib) of the Hindu Marriage Act, 1955, a person seeking dissolution of marriage on the ground of desertion has to plead and prove that there was no cohabitation between the husband and wife two years immediately before the presentation of the petition. On bare perusal of the averment, it is apparent that no such pleading is found. On the other hand. It is so forthcoming from the pleading that husband and wife stayed together only till 2007. The petition is filed in the year 2007. Under the circumstances, a decree for dissolution of marriage on the ground of desertion cannot be granted.

¶86

¶87

As far as the plea relating to the mental disorder of the wife is concerned the husband apart from leading his evidence, led the evidence of P.W.2 who is a doctor said to have treated the wife. The records would reveal that Doctor who is examined as P.W.2 appeared before the Court for cross-examination. Sufficient opportunity was given to the wife to cross-examine the doctor. However, the wife has not cross-examined the doctor and as such the Court passed an order that there is no crossexamination to P.W.2. Later an application is filed by the wife to recall the said order in seeking permission to cross-examine the doctor. The application was allowed. However, the doctor did not turn-up to give evidence. The Family Court has passed an order that the evidence of the doctor is to be expunged from the records.

¶88

As already noticed apart from examining himself and producing few prescriptions to show that the wife was under medication no other material evidence is

¶89

¶90

placed for the court to give a finding that wife is suffering from a mental disorder. This being the position this Court is of the view that the petition seeking dissolution of marriage on the ground of mental disorder is not tenable as mental disorder is not established. Accordingly, the judgement and decree passed by the Family Court, refusing to grant the decree for dissolution of marriage on the ground that the respondent-wife is suffering from a mental disorder must be sustained.

¶91

Now this Court has to consider whether the plea

¶92

of cruelty is established by the husband. This Court has already noticed that plea relating to cruelty in the petition. Paragraphs No. 5 to 10 in the petition are pertaining to the alleged cruelty by the wife. To substantiate his contention relating to cruelty the husband has produced 31 documents. The documents at Exs.P.1 to P.20 are the photographs produced by the husband to show that his wife never kept the household things clean and in order

¶93

¶94

and that she was messy. These documents by themselves are not sufficient to hold that the husband is subjected resulted to cruelty. However, the learned counsel for the husband has drawn the attention of this Court to Ex.P.34 - series of messages sent by the wife to the husband between November 2007 to February 2008. Some of the messages found in Ex. P-34 are extracted here for easy reference.

¶95

The SMS dated 12.01.2008 sent at 3:23 pm would read as under:

¶96

Pls arrange 45000 im very much need of it pls try 2 understd vr not made 4 each other once im settld i'll cum and give u divorce once u hav given d money i'll never even sms pls i have mental and physical pain every body cheatd me I dnt want 2 live in dis blore dnt think dis is natak pls I beg once 4 all let us end it if i stay here i cant control my self pls i beg u and i dnt want 2 disturb u anymore pls arrange 4 d money

¶97

The SMS dated 02.09.2007 sent at 03:49:32pm would read as under:

¶98

Let us depart v r not getg along with each other u need not live with me 4 others day by

¶99

¶100

day im losing my temper check with legal formalities im damn serious neither ur family vil inte'fere nor mine ?

¶101

The SMS dated 02.09.2007 sent at 04:54:46pm

¶102

would read as under:

¶103

Better v depart rather hurtg each other and v r not able 2 get along im losing my temper getg depressed pls check with legal formalities as sun as possible ok?

¶104

The SMS dated 02.09.2007 sent at 04:59:45pm would

¶105

read as under:

¶106

U hav dun so much pls do me a last favour v'll go and c d lawyer first 2mrw morng ok?

¶107

The SMS dated 02.09.2007 sent at 09:36:07pm would

¶108

read as under:

¶109

As sun as possible and there is nothing 2 talk only 2 take decision

¶110

The SMS dated 02.09.2007 sent at 09:55:34pm would read as under:

¶111

Ok anyways no need of talkg v'll start fiting v both r egoistic people and v hav hurtd eachother a lot atleast in this v'll make things faster

¶112

¶113

The SMS dated 02.09.2007 sent at 09:59:03pm would

¶114

read as under:

¶115

Pls i want 2 go 2mrw only i cant i dnt know wat i'll do 4 myself ok?

¶116

The SMS dated 02.09.2007 sent at 10:07:47pm would read as under:

¶117

V'ii meet 2mrw r u hav other option get me sum slow poisiong tablts frm doctor friend I can end myself on d spot but im scared that i'll scared that i'll escape and ur name v'll be spoilt

¶118

The SMS dated 02.09.2007 sent at 10:22:18pm would

¶119

read as under:

¶120

Dis is my last sms 2mrw im leavg i want sum money i'll talk 2 u morng

¶121

The SMS dated 03.09.2007 sent at 06:40:22am would read as under:

¶122

I need only 2000 i'll b going 4ever dis time im not even going 2 take clothes just drop me on d way.

¶123

The SMS dated 03.09.2007 sent at 10:32:04 pm would

¶124

read as under:

¶125

Im so sorry b coz of me ur bearing so much pain i do everything and ask u sorry. Sorry has

¶126

¶127

bcum meaningless 4 me I dont want 2 hurt sum or d other way hurt u im so sorry gudnite

¶128

The SMS dated 10.09.2007 sent at 08:56:04pm would

¶129

read as under:

¶130

Pls i want d reply 2mrw morng itself ok?

¶131

The SMS dated 10.09.2007 sent at 09:12:21pm would read as under:

¶132

(the letter/s after the word 'of' and after the word 'get' is not visible)

¶133

Pls 2mrw i want a firm decision and realistic ones dnt think abt others u not even 1 sec thought of..…always u did everything 2 everybody 4 everyting i cant force u, i'll giv u one more option u get … slow poisioning tablts i go off gradually u can live happily with ur people but 2mrw i want a decision ok?

¶134

The SMS dated 29.10.2007 sent at 10:22:17am reads

¶135

as under:

¶136

2mrw i want b cumg 2 ajith bhide no more counsellg 4 me I can c"ontrol myself

¶137

The SMS dated 07.01.2008 sent at 07:43:12pm would

¶138

read as under:

¶139

¶140

Pls check d rings in my blue bag which ur havg with u

¶141

The SMS dated 14.01.2008 sent at 06:42:09pm would

¶142

read as under:

¶143

Thanks a lot and sorry 4 d tension caused by me bye

¶144

The SMS dated ../08/2007 reads as under:

¶145

(the date is not visible in the document)

¶146

…u taken back tat notice? Pls reply if u want i'l giv divorce (the word before the letter 'u' is not visible in the document)

¶147

The SMS dated 17.02.2008 sent at 09:31:57am reads

¶148

as under:

¶149

Why did u cal up when ur at home? Let us not interfere in each others life?

¶150

The SMS dated 18.02.2008 sent at 05:31:55pm would

¶151

read as under:

¶152

This is d last time and i wont talk 2 u mu mom wants 2 talk 2 u?

¶153

¶154

The SMS dated 18.12.2008 sent at 05:50:09pm reads

¶155

as under:

¶156

+919886522556

¶157

C finally im askg u as u told tat ur takg back tat notice so pls send acknowledgmt tat u hav taken back frm lawyer ok? pls reply

¶158

When these documents are produced and

¶159

marked on behalf of the husband, no objection was raised on any grounds, as to the admissibility of the documents. In the cross-examination, the wife admitted that mobile number from which the messages are sent belongs to her. Though she denied the messages there is no explanation as to how the messages are sent from her cell phone. In the absence of any other objection as to the admissibility of the messages, the Court must consider the messages. From the messages it is apparent that there is a serious dispute and tension between the husband and wife. The messages referred to above would lead to the conclusion that the wife has in clear terms stated that she does not

¶160

¶161

want to continue with the martial relationship with the husband. She has also asked the husband to poison her so that she can end her life. It is also forth coming from those messages that she had insisted the husband to go for mutual divorce. The messages would also suggest that she was insisting the husband to buy some gemstones at the instance of astrologers to set right the rift between the husband and wife. It is also forth coming that the husband has arranged for gemstones and unfortunately, the normal relationship between the husband and wife was not resumed. Though these messages also indicate that there was an attempt by the husband and wife to resolve the issues between them, same was not resolved.

¶162

The violent behaviour of the wife and the hatred towards the husband is evident from the messages. Wife has also admitted in the cross examination, that from 2007, there is no cohabitation between the two and she is residing separately. The wife has admitted in the cross

¶163

¶164

examination that she was not comfortable living with her husband, his mother and the brother. The evidence on record would also clearly suggest that at the instance of the wife, the husband arranged a separate rented house and started living away from his mother. She further admits that only for 2-3 months after shifting to a separate residence, there was harmony and later there were frequent quarrels. It is also required to be noticed that the husband in his petition at paragraphs No.5 to 9 has given the particulars of alleged acts of cruelty on the part of the wife. However in the written statement the wife has not traversed those allegations.

¶165

It is also required to be noticed that the Family Court has given a finding that the wife in her crossexamination has admitted that she has once left the matrimonial house without informing the husband. Though the witnesses are not examined on behalf of the husband, or merely because the husband has not examined his

¶166

¶167

mother or brother to prove the instances of cruelty it cannot be said that cruelty is not established. The exchange of messages referred to above and also the scuffle and other circumstances brought in the evidence would definitely lead to the conclusion that the husband is subjected to cruelty by the wife.

¶168

Though the learned counsel for the wife contended that the plea of cruelty was later introduced by way of an amendment as such, the plea of cruelty should be treated as afterthought as the same was introduced on realising that the husband would not succeed on the plea of mental disorder and desertion. No doubt the amendment was introduced during the pendency of the petition. However, the settled position of law is the amendment will take effect from the date of the original petition, unless ordered otherwise. This being the position, the finding of the Family Court that cruelty is not established has to be set aside as the pleading relating to

¶169

¶170

cruelty is substantially established by producing

¶171

corroborative evidence.

¶172

The evidence in the cross-examination of the parties again indicates that the medicine was prescribed by the psychiatrist to the wife as well as husband. Though the documents are not sufficient to conclude the allegation and counter allegation relating to the mental disorder of the husband and wife, it can be inferred that there used to be frequent quarrel and tension between the husband and wife. The evidence extracted above from Ex.P.34 again gives a strong inference that the wife has hurt the emotions and feelings of the husband. The message dated 02.09.2007 sent at 09.55 p.m. by the wife to the husband is to the effect that both husband and wife are egoistic and have hurt each other, same can certainly be construed as an admission of the allegation by the husband that he is deeply hurt on account of the acts and omissions on the part of the wife. The message dated 03.09.2007 sent at

¶173

¶174

10.32 p.m. would also disclose that the husband is bearing lot of pain and the wife is confessing that she saying sorry to the husband has become meaningless. On considering these evidence on record and overall appreciation of circumstances brought before the Court, this Court is of the view that the husband has established the ground of cruelty, if not the ground of desertion and mental disorder.

¶175

It is required to be noticed that the Family Court has not analysed the oral and documentary evidence in the proper perspective. The evidence at Ex.P34 referred to above is completely overruled by the Family Court. When this evidence is not disputed, the Court has to analyse the same to ascertain whether the said document supports the case of either of the parties. For the reasons already discussed, this Court is of the view that the evidence produced by the husband supports the plea of cruelty.

¶176

¶177

The learned counsel for the wife in support of

¶178

her contention has placed reliance on the following judgments:

¶179

Ajay singh vs. Anubala reported in AIR 2016 (NOC) 300 (H.P.)

¶180

Sanjay Kumar vs. Pratima Devi reported in AIR 2010 PATNA 96.

¶181

Chandramohan Khurana vs. Smt.Neeta Khurana reported in AIR 2006 Uttaranchal 47

¶182

Jitendra Choudhury vs. Smt.Sangeetha Muhapatra reported in AIR 2011 Orissa 133

¶183

This Court has perused the judgments referred to above. The facts of the case in the case of Ajay Singh supra are not forthcoming in the citation submitted before the Court. As far as other judgments are concerned, suffice it to say that the facts obtained in the aforementioned judgments are different from the facts of the present case. This being the position, the ratio in the

¶184

¶185

said judgments cannot be made applicable to consider the ground of cruelty alleged in the present case. As far as ratio pertaining to desertion and mental disorder is concerned, this Court has already held that the desertion and mental disorder alleged are not proved. Hence, the contention of the wife that the Family Court is justified in dismissing the petition seeking dissolution of marriage by following aforementioned judgments cannot be accepted.

¶186

For the aforementioned reasons, this Court is of the view that the petition seeking dissolution of marriage on the ground of cruelty has to be allowed by setting aside the judgment and decree of the Family Court.

¶187

Though the husband is entitled to a decree for dissolution of marriage, the obligation to pay the alimony to the wife subsists. The learned counsel for the appellant/husband on instructions made a statement before the Court that six months before the husband had offered to pay Rs.37.5 lakhs to the wife as permanent

¶188

¶189

alimony and the wife rejected the offer demanding Rs.50.00 lakhs.

¶190

This Court has perused the records. In the cross-examination a suggestion was put to the husband stating that the house in Sanjaynagar, Bangalore which is purchased by the husband is worth Rs.3 crores. The husband has denied the suggestion and has stated that the value of the property is worth Rs.1 crore. The said evidence was recorded in the year 2014. Nine years have elapsed since then. Husband has admitted the ownership of the said property. Needless to say that the property price has shot-up since then. This being the position this Court is of the view that the wife is entitled to a permanent alimony of Rs. 45.lakhs.

¶191

Hence the following:

¶192

¶193

ORDER

¶194

(i) The impugned judgment and decree dated 23.08.2016 in M.C.No.2747/2007 on the file of V Additional Family Court, Bengaluru are set aside and consequently M.C.No.2747/2007 on the file of V Additional Family Court, Bengaluru is allowed. The marriage solemnised on 07.12.2005 between the petitioner and respondent in the aforementioned proceeding is dissolved by a decree of divorce.

¶195

(ii) The respondent in M.C.No.2747/2007 on the file of V Additional Family Court, Bengaluru is entitled to permanent alimony of Rs.45 lakhs.

¶196

(iii) The permanent alimony of Rs.45 lakhs shall carry interest at the rate of 6% per annum in case the said amount is not paid within three months from this date.

¶197

¶198

(iv) The impugned judgment and decree dated 23.08.2016 in M.C.No.3231/2013 on the file of V Additional Family Court, Bengaluru are set aside. Consequently, petition in M.C.No.3231/2013 on the file of V Additional Family Court, Bengaluru seeking restitution of conjugal rights is dismissed.

¶199

(v) MFA No. 7506/2016 and MFA No.7507/2016 are allowed.

¶200

Sd/JUDGE

¶201

Sd/JUDGE

¶202

BRN

Sri Damodar Raju B K v. Smt Saritha

Case brief

What is this about?

What did the court decide?

Sri Damodar Raju B K v. Smt Saritha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Karnataka Vs Narayana Rao P a

Smt S Premaleela Vs K B Jayanna

M/S Stevia World Agro Tech Pvt. Ltd. Vs Mrs Usha Medina

Smt Rani Ramaswamy Vs Centre for Development of Telematics

National Highways Authority of India Vs Sri R M Subbegowda

Tarannum Vs the State of Karnataka